Lord Strathclyde: My Lords, I am indebted to the noble Lord, Lord Rodgers of Quarry Bank. He asked whether it was in order to put down the amendment that I have tabled. I believe it is and I would very much appreciate the confirmation of the noble Baroness the Leader of the House on that point.

Baroness Jay of Paddington: My Lords, I agree that the matter is formally within the letter of the law as regards the procedure of the House. However, I believe the noble Lord, Lord Rodgers, is correct in saying that it is not within the spirit of the understanding that we have of the report of the Procedure Committee which was accepted by your Lordships earlier this year.

Lord Strathclyde: My Lords, I wonder whether the noble Baroness will take some time later this afternoon to re-examine what she has said. I am not at all aware that it is against the spirit of the report of the Procedure Committee. I am under the impression that it is perfectly in order to table the amendment as we have done. Indeed, in the report of the Procedure Committee there is a system whereby amendments tabled late would be printed on a separate piece of paper. If the noble Baroness would confirm that that is her understanding, perhaps we can carry on with the Committee stage.

Lord Rodgers of Quarry Bank: My Lords, before the noble Baroness replies, I think that the noble Lord, Lord Strathclyde, has got it slightly wrong. He does not have the Procedure Committee report in front of him. I thought that he would be pleased that the amendment was published in the Marshalled List. As the noble Baroness said, the resolution which has been agreed by the House states that it should be published in a revised Marshalled List or in a supplementary list. There is no argument about that. It is to the advantage of the noble Lord and to the advantage of the whole House. The real

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question is whether the recommendation of the Procedure Committee means what it says. There can be no doubt at all that the noble Lord, Lord Strathclyde, has acted outside the spirit of the matter. I do not intend to pursue it further; I do not want to delay the debate on the main issue. I only hope that the noble Lord, Lord Strathclyde, does not do it again.

Lord Campbell of Alloway: My Lords, this is an amendment of overriding consequence, notwithstanding what the noble Lord, Lord Rodgers of Quarry Bank, has said to the contrary. It is concerned with what could conceivably be a fundamental defect in the drafting of Clause 1 of the Bill. In these exceptional circumstances, as I see it at all events, it is right that it should take place before Clause 1 because it is a wholly exceptional circumstance. If it has arrived late, that is nothing to do with me; it has arrived late.

Baroness Jay of Paddington: My Lords, I am sure the substance of the question of whether the amendment is relevant to the underlying purpose of the Bill will be the subject of the debate, which I hope we can proceed to. I would say to the noble Lord, Lord Campbell of Alloway, that if the amendment was so obvious and so fundamental it is surprising that it was tabled so late. As to the spirit of the understandings which were agreed with the Procedure Committee, I think--I do not have the advantage of the noble Lord, Lord Rodgers, of having the report in front of me--the words were that the practice is to be discouraged. I am in the hands of the House about whether to discourage this practice, but I think it was agreed that discouraging the late setting of amendments was precisely to facilitate the arrangements for every Member of the House on all sides.

Lord Strathclyde: My Lords, I cannot accept this. I was present in the Procedure Committee which discussed this. It was quite clear that it was intended that on occasions amendments would be tabled late according to what I might term the old rules. If that had not been the case I would not have agreed to the report of the Procedure Committee. If the noble Lord, Lord Rodgers of Quarry Bank, is saying that there should be a further examination by the Procedure Committee, there is a perfectly good system to allow that discussion to take place.

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

3.15 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 10A:

Before Clause 1, insert the following new clause--

Exclusion of Hereditary Peers

(" . No-one shall receive a writ of summons to attend the House of Lords by virtue of an hereditary peerage.")

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The noble Lord said: Before I turn to the amendment, perhaps I may say to the noble Lord, Lord Rodger of Earlsferry, that he should thank his lucky stars--

Noble Lords: Lord Rodgers of Quarry Bank!

Lord Mackay of Ardbrecknish: I am sorry. I meant Lord Rodgers of Quarry Bank. Such a distinguished colleague as my noble and learned friend Lord Rodger of Earlsferry would not have asked such a question. The noble Lord, Lord Rodgers of Quarry Bank, should be grateful that I did not produce a manuscript amendment.

As my noble friend Lord Campbell of Alloway has just said, the object of the amendment is to probe a very important part of the Bill and to seek the Government's view as a result of an opinion given by Mr. John Lofthouse. As your Lordships know, I am the only member of the "Triplets Mackay" who is not a lawyer, and therefore the amendment is very much a lay amendment. The clause is very much a lay clause because it does not address the peerage in a technically precise way. As it stands in the Bill, the clause hangs on the three words "by virtue of", which my noble friend Lord Ferrers will raise and probe later.

How is it that we--all of us, life Peers and hereditary Peers--come to be sitting in your Lordships' House? I suggest and submit that it is in response to a Writ of Summons. Once we come here, all of us, apart from the right reverend Prelates, have the right to stay here for life. Whether hereditary Peers or life Peers, we are here because of a Writ of Summons. An hereditary Peer does not sit in your Lordships' House by virtue of being an hereditary Peer. There are some 70 holders of hereditary Peerages who cannot be here today because they have no Writ of Summons. A number of my noble friends--my noble friend Lord Caithness is one--inherited their Peerages before they were 21 years old. They could not come here; they did not receive a Writ of Summons. That is one example. A Peer who is bankrupt cannot receive a Writ of Summons to come here. A Peer whose father dies cannot walk in here and demand to take his seat if he does not have a Writ of Summons. Every time someone comes to take the Oath, whether at the beginning of a Session or as happened earlier today, a piece of paper is handed to the Clerk; and that piece of paper is the Writ of Summons. It is not the hereditary Peerage but the Writ of Summons that is important.

The terminology in legislation is vitally important. Perhaps I may illustrate it in this way. English, Scottish and Welsh people are all entitled to be Members of the House of Commons. But let us say--it does not look very likely from the opinion polls in Scotland at the moment--that Scotland were to become independent and one wished to exclude Scots from this Parliament--present company, the Lord Chancellor and myself excluded, I need hardly say. How would one go about it? One might put forward a late piece of legislation that said "No one shall be a Member of the House of Commons by virtue of being a Scot". Would that exclude Scots from the House of Commons? Clearly it would not. It would not be enough for the Government to say "Ah, but that is what we intended". If that is what is intended then that is what should be on the face of the Bill.

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The amendment is a simple, layman's proposition but it is based on the opinion of one of the leading practitioners of peerage law in our country, Mr John Lofthouse, whose opinion on such matters has been sought by the Government in the past. His opinion is perfectly clear. He says:

"nobody is a 'member of the House of Lords' by virtue of an hereditary peerage. Membership of the House is conferred by obedience to a writ of summons'".
He goes on to say that that is no mere technicality. He reminds us of the leading case on this matter--it may have been some time ago, but it is still the leading case--the case of the Earl of Bristol. He was a hereditary Peer but Charles I refused him a Writ-- I suspect that Charles I did not want him to sit in your Lordships' House--and because he had been refused a Writ he could not sit in your Lordships' House. It was only after he had contested the issue and had received a Writ of Summons that he was able to sit in your Lordships' House.

Clause 1 does not seem to be the whole, or even part, of the answer when it comes to excluding hereditary Peers from this place. It may seem strange, but I am trying to help the Government in this regard. It is part of your Lordships' role to revise legislation and to ensure that it means what it says. Whether one agrees with what it says is another matter, but it should certainly mean what it says.

The Government may ask: does not subsection (4) of Clause 2 override the writ, even if the argument about Clause 1 is correct? I do not know the answer. As I said, I am not a lawyer. But it is a question worth asking. We all look forward to hearing the answers to these points from the noble and learned Lord the Lord Chancellor.

There are those who say that the writ is merely a summons; that, once the writ has been answered and a Peer has come to this House, it cannot be used as a means to eject a Peer. It is argued that a Peer who has taken the Oath sits in this House as of right, and that Clause 4(2) does not remove that right.

This legislation will set aside centuries of constitutional practice and precedent. It purports to set aside the rights, duties and privileges of Peers of Parliament summoned here by Royal Command. Those are rights to which human rights legislation, notwithstanding the declaration made by the Government in the Bill, may well apply, because there are legal rights and duties. Also, as noble Lords on all sides of the House have freely admitted, sacrifices have been made by many Peers to come to this place and do their duty in the expectation that they would sit here for the rest of their life. Can those rights and duties be readily and loosely overridden? I do not dispute that Parliament can do that. But in this age of human rights and natural justice, we must be careful about how Parliament does it.

The Government may say that the purpose of the legislation is clear. They may say: "It does not matter whether we have got all the small print right; it is what we wanted to do that must guide the courts"--as it were, a Pepper v. Hart view of legislation. That may well be right. But it seems slightly akin to someone deciding to

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ban a ball game: let us say, cricket. We Scots sometimes think that cricket probably should be banned. If we set out to ban cricket, and did so on the definition of a ball that did not in fact "catch" a cricket ball, although it may have caught other balls, where would that leave us? We may be able to argue: "Yes, of course we are against cricket. We did not specify that it had to be a hard leather ball that we wanted to ban; we just specified balls"--